Racial
and Ethnic Tensions in American Communities: Poverty, Inequality, and
Discrimination—Volume
VII: The Mississippi Delta Report

Chapter
3

Voting
Rights and Political Representation in the Mississippi Delta

VOTING
RIGHTS LEGISLATION AND LITIGATION

Reconstruction

Following
the end of the Civil War, two constitutional provisions were ratified to protect
the right of African Americans to vote.[1]
The 14th Amendment to the Constitution, which in part guaranteed equal
protection of the laws, was ratified in 1868 and the 15th Amendment was ratified
in 1870. The 15th Amendment provided:

The
right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.

The
Congress shall have power to enforce this article by appropriate
legislation.[2]

During
Reconstruction, several statutes also were passed in an attempt to safeguard the
franchise rights of the newly freed slaves. The Military Reconstruction Acts of
1867 mandated that the southern states, as a condition of readmission to the
Union, adopt new constitutions providing suffrage rights for African American
males.[3]
As a result, approximately 700,000 blacks, mostly former slaves, registered to
vote.[4]
Similarly, following ratification of the 15th Amendment, Congress passed “an
Act to enforce the Rights of Citizens of the United States to vote in the
several States of this Union, and for other Purposes,”[5]
commonly known as the Enforcement Act of 1870. This act mandated that any
citizen, otherwise qualified to vote, shall be entitled to vote without
distinction to race, color, or previous condition of servitude.[6]
The act also provided penalties for obstruction of the right to vote by election
officials or other citizens.[7]
In 1871, the act was amended to strengthen the penalties for fraudulent
registration or failure or refusal to register entitled persons. The act also
established election supervisors for cities or towns with more than 20,000
inhabitants.[8]

For
a brief time, these protections afforded African Americans the ability to vote
and elect representatives of their choice. The state of Mississippi for example,
from 1869 to 1901, elected a total of three black U.S. congressmen and 64 black
state legislators.[9]
The electoral success of African Americans was short-lived, however. In two
cases decided in 1875, the Supreme Court severely restricted use of the
Enforcement Act,[10]
and in 1894 Congress repealed many of the remaining sections. The only
provisions of the act that survived were two sections creating civil liability
on the part of persons who interfered with the right to vote (now 42 U.S.C. §§
1983, 1985) and two sections imposing criminal sanctions for hindering a citizen
in the exercise of the right to vote (now 18 U.S.C. §§ 241, 242).

Litigation
Prior to 1965

Congress
did not address the issue of voting rights again until passage of the Civil
Rights Act of 1957.[11]
Prior to that legislation or enactment of the Voting Rights Act, litigation to
protect the rights of people of color to vote was brought under the
Constitution, specifically the 15th Amendment and the equal protection clause of
the 14th Amendment. The first of these cases challenged impediments to voting
that states erected to prevent the exercise of franchise rights by African
Americans.

Guinn v. United States,238 U.S. 347 (1915): The
Court in this case considered the constitutionality of an amendment to the
Oklahoma Constitution, which established a literacy test as a condition for
registering to vote or for voting, but exempted from the requirement people who
had been entitled to vote before January 1, 1866, or their lineal descendants
(known generally as a grandfather clause). The Court found that there could be
no reason for the grandfather clause other than to create a standard of voting
that revitalized conditions existing prior to the adoption of the 15th
Amendment. Thus, it was void under the 15th Amendment to the Constitution. The
Court also held that the literacy test itself was so connected to the
grandfather clause that the unconstitutionality of the latter rendered the
entire amendment invalid.

Nixon v. Herndon, 273 U.S. 536 (1927): The Supreme Court
in this case held unconstitutional under the 14th Amendment a Texas statute that
barred blacks from voting in Democratic Party primary elections. Although the
statute was challenged under both the 14th and 15th Amendments, the Court did
not consider the 15th Amendment claim because it found it “hard to imagine a
more direct and obvious infringement of the Fourteenth [Amendment].”

Grovey v.
Townsend,295 U.S. 45 (l935), overruled by Smith v.
Allwright, Election Judge, 321 U.S. 649 (1944): In this case, the Court
upheld a resolution adopted by the Texas Democratic Party at its state
convention that restricted membership in the party and participation in its
deliberations to white citizens of Texas. Based on this resolution, the black
plaintiff was denied a ballot in the primary election. The Supreme Court held
that action by the party’s state convention was not state action under the
14th or 15th Amendments, and denial of the right to vote in a primary, versus a
general election, was merely refusal of party membership and did not violate the
Constitution.

Breedlove v. Suttles, Tax Collector, 302 U.S. 277 (1937),overruled by
Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966): This case
considered the constitutionality of a Georgia poll tax of $1, which applied to
all inhabitants of the state between the ages of 21 and 60, but not to blind
persons or to women who did not register to vote. Payment of the tax was
required in order to register and vote in any election. A white male challenged
the statute as unconstitutional under the equal protection and privileges and
immunities clauses of the 14th Amendment and the 19th Amendment. The Court
upheld the poll tax and found it violated neither the 14th nor the 19th
Amendments.

Smith v. Allwright, Election Judge,321
U.S. 649 (1944): The Court in this case overruled its previous decision in Grovey
v. Townsend, and held the right to vote in primary elections was protected
by the Constitution. This case again concerned the Texas Democratic Party’s
resolution that restricted membership to white citizens of Texas. The Court
found that primary elections were conducted by the party under state statutory
authority and were a part of the machinery for choosing officials. Although
recognizing that generally membership in a party was not a concern of the state,
the Court held that when membership was a qualification for voting in a primary
to select nominees for the general election, it became an action of the state,
and in this case violated the 15th Amendment.

Terry v. Adams, 345 U.S. 461 (1953): This case also
concerned the voting procedures of the Democratic Party in Texas. The Jaybird
Association, a county political organization, excluded blacks from its
membership and from its primaries. The Jaybirds held elections each year to
select candidates for county offices to run for nomination in the official
Democratic primary, but these elections did not use any state machinery or
funds. For the previous 60 years, the Jaybird candidate entered the Democratic
primary without opposition and eventually won the general election. The Court
thus held that the combined election machinery of the Jaybird Association and
the Democratic Party deprived petitioners the right to vote because of their
race, in violation of the 15th Amendment.

Anderson v. Martin,375 U.S. 399 (1964): In this
case, the Supreme Court held that a Louisiana statute requiring that nomination
papers and ballots in all primaries and elections designate the race of the
candidate violated the equal protection clause of the 14th Amendment.

Harper v. Virginia State Board of Elections,383 U.S. 663 (1966): The
Court in this case considered a challenge to the constitutionality of Virginia’s
poll tax. The Court held that a state violates the equal protection clause of
the 14th Amendment whenever it makes the affluence of the voter or payment of
any fee an electoral standard. The Court thus expressly overruled Breedlove v. Suttles, Tax Collector.

Prior
to the passage of the Voting Rights Act, constitutional claims also were raised
to challenge the size and shape of voting districts. At first, the courts
declined to become involved in an area viewed either as part of the political
domain or under the exclusive control of the states, but later they began to
adjudicate these cases.

Colegrove v. Green,328 U.S. 549 (1946): This case
involved an action brought by citizens of Illinois alleging that because of
substantial changes in population, congressional districts in the state lacked
compactness of territory and equality of population. The Court affirmed the
decision of the district court dismissing the complaint, holding that Congress
had exclusive authority to secure fair representation by the states in the House
of Representatives and the “[c]ourts ought not to enter this political
thicket.”[12]

Gomillion v. Lightfoot, 364 U.S. 339 (1960): Black
residents of Alabama brought an action under the 14th and 15th Amendments of the
Constitution challenging a legislative action that changed the boundaries of the
city of Tuskegee from a square to an irregular 28-sided figure. This change
resulted in removing from the city’s boundaries all but four or five of its
400 black voters. The district court had dismissed the action on the grounds
that it had no authority to change the boundaries of a municipal corporation
established by a state’s legislative body. The Supreme Court reversed, holding
that although the exercise of a state power wholly within the domain of state
interest is insulated from federal judicial review, that insulation “is not
carried over when state power is used as an instrument for circumventing a
federally protected right.”[13]

Baker v. Carr, 369 U.S. 186 (1962): In this case,
citizens of Tennessee brought an action claiming they had suffered a debasement
of their votes, in violation of the equal protection clause of the 14th
Amendment. These allegations were based on the state’s continued application
of a 1901 reapportionment act, and its failure to account for the fact that the
population of Tennessee had grown substantially and been redistributed. The
district court, relying primarily on Colegrove
v. Green, had dismissed the claim based on lack of subject-matter
jurisdiction and failure to state a claim upon which relief could be granted.
The Supreme Court reversed, rejecting the notion that this was a nonjusticiable
political question, and held that the allegation of a denial of equal protection
presented a justiciable constitutional cause of action.

Reynolds v. Sims, 377 U.S. 533 (1964): In this case, the
plaintiffs claimed that the apportionment of the Alabama Legislature deprived
them of their rights under the equal protection clause of the 14th Amendment.
The 1900 census continued to form the basis of the Alabama legislative
apportionment at that time, despite the fact that populations in some counties
had grown substantially more than in others. The Court held the equal protection
clause requires the seats in both houses of the State Legislature be apportioned
on a population basis. The Court recognized the right to vote can be infringed
by dilution of voting power in addition to an absolute prohibition on voting,
and held any dilution of a person’s right to vote in comparison with someone
living in another part of the state violates the equal protection clause. This
case is commonly referred to as the “one person, one vote” case.

The
Voting Rights Act

Litigation
proved to be a useful weapon in the battle to destroy discriminatory voting
procedures and practices. It was a weapon that could only be used in limited
circumstances, however, because it required a substantial commitment of time and
money. Ultimately, litigation alone could not effect the significant changes
needed to secure the right to vote for eligible African Americans. Black voter
registration, particularly in the South, was very low, and in Mississippi only
6.7 percent of eligible blacks were registered to vote in 1964.[14]
In response, Congress began to pass important new civil rights legislation, all
of which contained some provisions addressing voting rights.

Congress
first passed the Civil Rights Act of 1957,[15]
which, among other things, authorized the Attorney General to institute civil
actions for injunctive relief on behalf of individuals deprived of the right to
vote in federal elections and provided penalties for interference with federal
voting rights.[16]
The 1957 act also created the Commission on Civil Rights to investigate
deprivations of the right to vote.[17]

Three
years later Congress passed the Civil Rights Act of 1960,[18]
which mandated the retention, preservation, reproduction, and inspection of
voting records.[19]
The act also provided that if injunctive relief was granted in a suit brought by
the Attorney General, the Attorney General could ask the court to find a pattern
or practice of discrimination, and individuals in the jurisdiction could apply
to the court for a finding that they were qualified to vote.[20]

The
Civil Rights Act of 1964[21]
also contained provisions relating to voting rights. It required that uniform
standards, practices, and procedures be applied in determining qualifications to
vote in any federal election; forbid denying the right to vote because of
immaterial errors or omissions on registration forms; and mandated that if
literacy tests were used, they must be administered to every applicant in
writing and a certified copy be provided to the applicant.[22]
The act also created a presumption, in any proceeding brought by the Attorney
General, that anyone with at least a sixth-grade education possessed sufficient
literacy to vote.[23]
To expedite voting cases, the act provided that the Attorney General could
request a hearing before a three-judge court, with appeal directly to the
Supreme Court.[24]

Despite
the enactment of these various civil rights laws, the most significant piece of
legislation affecting the right to vote was the Voting Rights Act of 1965.[25]
Among its provisions, the act:

prohibited
the use, by any state or political subdivision, of any qualification or
prerequisite to voting, or any standard, practice or procedure, to deny or
abridge the right of any citizen to vote on account of race or color.[26]

provided
authority to the courts, in any proceeding instituted by the Attorney
General to enforce the 15th Amendment, to suspend the use of any test or
device that the court had found to have been used to deny or abridge the
right to vote.[27]

provided
for the automatic suspension of literacy tests and other devices for five
years in states and subdivisions where such tests and devices were
maintained on November 1, 1964, and where less than 50 percent of the
voting-age population was registered or had voted in the presidential
election of 1964. Any state or subdivision could be exempted from this
provision by obtaining a declaratory judgment that such tests or devices had
not been used to accomplish discrimination in the preceding five years.[28]

required
that covered states and political subdivisions submit to the Attorney
General any new or changed voting requirement. The Attorney General then had
60 days to interpose any objections. Alternatively, the state could enforce
the new requirement by obtaining a declaratory judgment that it did not have
the purpose or effect of denying or abridging rights protected by the 15th
Amendment.[29]

declared
Congress’ finding that the collection of a poll tax as a precondition to
register or to vote in state or local elections denied the constitutional
rights of citizens and authorized the Attorney General to institute actions
against the enforcement of any requirement of the payment of a poll tax.[30]

provided
for the appointment of federal election examiners and poll watchers upon the
order of a court or the Attorney General.[31]

contained
criminal penalties for any official who abridged the right to vote or failed
to count the vote of any person, or for anyone who intimidated or threatened
any person attempting to vote.[32]

In
1970, the preclearance and other provisions of the Voting Rights Act were
extended for another five years, and coverage of the act was expanded to include
any state or political subdivision that maintained a test or device on November
1, 1968, and had less than a 50 percent turnout or registration rate in the 1968
presidential election.[33]
The act also established a five-year nationwide ban on the use of literacy tests
or other devices, prohibited the use of durational residency requirements for
presidential elections, and reduced the voting age to 18.[34]
In 1975, the act was extended for an additional seven years, and the temporary
nationwide ban on the use of literacy tests and other devices was made
permanent.[35]
The 1975 amendments also expanded the coverage of the act to include language
minorities.[36]

The
Voting Rights Act thus provided a new cause of action to challenge
discriminatory voting practices. One of the most important provisions of the act
was section 5, which required approval by the Attorney General of any new voting
qualification or prerequisite or any new standard, practice, or procedure with
respect to voting in the covered jurisdictions (which included almost all
southern states). The Court’s broad reading of the application of section 5
was instrumental in preventing new roadblocks to minority voter
participation.

South Carolina v. Katzenbach, 383 U.S. 301 (1966): In this
case, the Supreme Court considered the constitutionality of certain provisions
of the Voting Rights Act of 1965. The state of South Carolina challenged these
provisions on the grounds that they exceeded the powers of Congress and
encroached on an area reserved to the states. The Court upheld the
constitutional­ity of the act, finding that it was a valid means of carrying
out the commands of the 15th Amendment.

Allen v. State Board of Elections,393 U.S. 544 (1969):
Here, the Supreme Court addressed the applicability of section 5 of the Voting
Rights Act to recently passed laws and regulations in Mississippi and Virginia.
The changes instituted by the states included a change from district to at-large
voting for county supervisors; a change that made superintendents of education
in 11 counties appointive instead of elective; changes in the requirements for
independent candidates running in general elections; and new procedures for
casting write-in votes. The Court held that the Voting Rights Act should be
given the broadest scope possible and that all the above changes were subject to
the section 5 preclearance requirements.[37]
The Court also acknowledged a private right of action, holding that citizens are
entitled to seek declaratory judgment that a state has failed to comply with the
Voting Rights Act.

Connor v. Johnson, 402 U.S. 690 (1971): In this challenge
to a Mississippi reapportionment statute, the Court held that a decree of the
district court is not within the reach of section 5 of the Voting Rights Act.
The Court also held that when district courts are forced to fashion
apportionment plans, single-member districts are preferable to large multimember
districts as a general matter.

Perkins v. Matthews,400 U.S. 379 (1971): The
Court considered the applicability of section 5 to several changes in voting
procedures instituted by the city of Canton, Mississippi. The Court held that
all of the changes, i.e., (1) changes in the locations of polling places, (2)
annexations of adjacent areas, and (3) a change from ward to at-large voting for
the election of aldermen, were subject to section 5 clearance.

Beer v. United States, 425 U.S. 130 (1976): The city
of New Orleans brought this action under section 5 of the Voting Rights Act,
seeking a declaratory judgment that a reapportionment of the councilman
districts did not have the purpose or effect of denying or abridging the right
to vote. Under the city’s previous apportionment plan, none of the five
districts had a black majority of registered voters. Under the new plan, blacks
would constitute a majority of registered voters in one of the five districts.
Based on the fact that blacks constituted 35 percent of registered voters in New
Orleans, the lower court found that the new plan failed to provide blacks the
opportunity to elect council members in proportion to their share of the city’s
registered voters, and thus it violated section 5. The Supreme Court reversed,
holding that the purpose of section 5 was to ensure that there was no
retrogression in the position of minorities. Because the new plan enhanced the
position of minorities, it could not be found to have the effect of diluting or
abridging the right to vote.

Morris v. Gressette, 432 U.S. 491 (1977): In this
case, the Supreme Court held that judicial review of the Attorney General’s
action under section 5 of the Voting Rights Act is precluded.

Presley v. Etowah County Commission, 502 U.S. 491 (1992): Here, the
Supreme Court was presented with two consolidated appeals concerning changes in
the decisionmaking authority of the elected members of two different county
commissions in Alabama. In Etowah County, the commission passed a resolution
shortly before the first black member was elected following the commission’s
restructuring pursuant to a consent decree. Where the commissioners had
previously controlled the moneys for road repairs, maintenance, and improvement
for their own district, the resolution provided that all such moneys be
maintained in a common account for the use of the entire county. In Russell
County, the commission passed a resolution delegating control over road
construction, maintenance, and inventory to the county engineer, an official
appointed by the entire commission and responsible to it. Formerly, the
commissioners themselves had exercised such control. The Court reviewed its
section 5 cases and determined that there are four contexts in which section 5
applies: (1) changes involving the manner of voting, (2) changes in candidacy
requirements and qualifications, (3) changes in the composition of the
electorate that may vote, and (4) changes affecting the creation or abolition of
an elective office. The Court held that neither of the resolutions at issue fell
within the four contexts of changes “with respect to voting,” which would
make section 5 applicable. Rather, the changes were more in the nature of
changes “with respect to governance.”

Morse v. Republican Party of Virginia, 517 U.S. 186 (1996): Here, the
Supreme Court held that Virginia’s Republican Party acted under authority of
Virginia when it picked its candidate for United States senator at the party’s
convention. Therefore, its imposition of a registration fee for voters to become
delegates to the convention was subject to section 5 preclearance.

In
addition to litigation under section 5 of the Voting Rights Act that challenged
changes to voting procedures enacted by states, vote dilution claims continued
under the Constitution and section 2 of the Voting Rights Act.[38]
These cases often challenged practices such as multimember districts or at-large
voting that functioned to minimize the voting strength of minorities.

White v. Regester,412 U.S. 755 (1973): This case
involved a 14th Amendment challenge to two multimember districts in the Texas
House of Representatives, claiming that they diluted the voting strength of
racial and ethnic minorities. The Court noted it is not enough to allege a
population has not had legislative seats in proportion to its voting potential,
but the plaintiffs must prove the political process was not equally open to
participation by the particular group. The Court upheld the lower court’s
decision that the districts invidiously discriminated against black and Mexican
American voters, finding the evidence of historical political discrimination
against these groups and the residual effects of that discrimination sufficient
to sustain the judgment.

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973),
aff’d, East Carrol Parish School Board v. Marshall, 424 U.S. 636 (1976):
The Fifth Circuit in this case considered a constitutional challenge to at-large
elections for school board and police juries in East Carroll Parish, Louisiana.
The Court held that while at-large and multimember districting schemes are not
per se unconstitutional, they are unconstitutional if it is demonstrated that
minorities have less opportunity to participate in the political process and
elect legislators of their choice. The Court then delineated a number of factors
to be considered in making such a determination, including lack of access to the
slating process; unresponsiveness of legislators to the needs of the minority
community; a tenuous policy underlying the preference for multimember or
at-large voting; the existence of past discrimination; or the existence of large
districts, majority vote requirements, and anti-single-shot voting provisions.

The
standards from the above cases and the factors outlined in the Zimmer
decision were used in evaluating and adjudicating claims of minority vote
dilution under the Constitution and the Voting Rights Act until a Supreme Court
decision in 1980.[39]
In Mobile v. Bolden,[40]
the Court considered whether the at-large system for electing the Mobile,
Alabama, City Commission violated the rights of black voters in the city under
section 2 of the Voting Rights Act and the 14th and 15th Amendments. A plurality
of the Court reversed the decisions of the lower courts, which had found that
the at-large system violated the plaintiffs’ rights and held that the
plaintiffs must demonstrate discriminatory intent to prevail on vote dilution
claims.[41]

1982
Amendments to the Voting Rights Act

In
response to the Mobile decision, the Voting Rights Act was amended again in 1982.[42]
The amendments restored the results standard prior to the Supreme Court’s
decision in Mobile v. Bolden and made
clear that proof of discriminatory purpose was not necessary to establish a
violation of section 2. The new language of the statute read:

No
voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision
in a manner which results in a denial or abridgment of the right of any
citizen of the United States to vote on account of race or color. . .
.

A
violation of subsection (a) is established if, based on the totality of the
circumstances, it is shown that the political processes leading to
nomination or election in the state or political subdivision are not equally
open to participation by members of a class of citizens protected by
subsection (a) in that its members have less opportunity than other members
of the electorate to participate in the political process and to elect
representatives of their choice.[43]

The
extent of any history of official discrimination in the state or political
subdivision that touched the right of the members of the minority group to
register, vote, or otherwise participate in the democratic process.

The
extent to which voting in the elections of the state or political
subdivision is racially polarized.

The
extent to which the state or political subdivision has used unusually large
election districts, majority vote requirements, anti-single-shot provisions,
or other voting practices or procedures that may enhance the opportunity for
discrimination against the minority group.

If
there is a candidate slating process, whether the members of the minority
group have been denied access to that process.

The
extent to which members of the minority group in the state or political
subdivision bear the effects of discrimination in such areas as education,
employment and health, which hinder their ability to participate effectively
in the political process.

Whether
political campaigns have been characterized by overt or subtle racial
appeals.

The
extent to which members of the minority group have been elected to public
office in the jurisdiction.

Additional
factors that in some cases have had probative value as part of plaintiffs’
evidence to establish a violation are:

whether
there is a significant lack of responsiveness on the part of elected
officials to the particularized needs of the members of the minority group;
whether the policy underlying the state or political subdivision’s use of
such voting qualification, prerequisite to voting, or standard, practice or
procedure is tenuous.[44]

The
reinstitution of the results tests was particularly significant with respect to
vote dilution claims, where proof of discriminatory motive in the adoption of
voting schemes such as multimember districts was increasingly difficult. The
elements of proof necessary for a section 2 claim after the 1982 amendments were
later clarified by the Supreme Court.

Thornburg v. Gingles,478 U.S. 30 (1986): In
this case, the Supreme Court for the first time addressed the 1982 amendments to
the Voting Rights Act. The Court considered a claim that multimember districts
for the North Carolina Legislature diluted black voting strength in violation of
section 2. In addition to consideration of the relevant factors delineated in
the Senate report accompanying the section 2 amendments, the Court held that the
following three factors must be established to prove claims of vote dilution
under section 2: (1) the minority group must be able to demonstrate that it is
sufficiently large and geographically compact to constitute a majority in a
single-member district; (2) the minority group must be able to show that it is
politically cohesive; and (3) the minority must be able to demonstrate that the
white majority votes sufficiently as a bloc to enable it usually to defeat the
minority’s preferred candidate.

Chisom v. Roemer, 501 U.S. 380 (1991): The Supreme Court
in this case held that section 2 of the Voting Rights Act applies to judicial
elections.

Growe v. Emison, 507 U.S. 25 (1993): In this case, the
Supreme Court held that the three prerequisites identified in Thornburg v. Gingles as necessary to establish a vote dilution claim
with respect to a multimember districting plan are also necessary to establish a
vote fragmentation claim with respect to a single-member district.

Voinovich v. Quilter, 507 U.S. 146 (1993): The
Supreme Court recognized that manipulation of district lines can dilute the
voting strength of politically cohesive minority group members, whether by
fragmenting the minority voters among several districts where a bloc-voting
majority can routinely out-vote them, or by packing them into one or a small
number of districts to minimize their influence in the neighboring districts. In
1996, however, the Court vacated its earlier decision based upon its holdings in
Shaw v. Hunt, 517 U.S. 899 (1996), and
Bush v. Vera 517 U.S. 952 (1996)
(below), and remanded the case to the district court. Applying rational basis
scrutiny, the district court upheld the redistricting plan, finding that it did
not violate the equal protection clause.[45]

Holder v. Hall, 512 U.S. 874 (1994): This case
involved a section 2 vote dilution challenge by black plaintiffs against
Bleckley County, Georgia’s single-commissioner form of government. The
plaintiffs claimed that the county should have a commission of sufficient size
so that, with single-member districts, the county’s black citizens could
constitute a majority in one of the districts. The Supreme Court held that,
because there was no objective and workable benchmark against which to compare
the existing practice, a challenge to the size of a governing authority could
not be maintained under section 2.

Johnson v. De Grandy, 512 U.S. 997 (1994): Addressing
a redistricting plan in Florida, the Supreme Court held that the proportionality
(the percentage of majority-minority districts compared with the percentage of
minorities throughout the state) of race was a relevant consideration in
redistricting decisions. The Court also noted that the ultimate goal of section
2 is equality of proportionality, not a guarantee of electoral success for
minority preferred candidates of whatever race.

In
1997, the Supreme Court addressed the interplay between sections 2 and 5 of the
Voting Rights Act. In Reno v. Bossier Parish, the Supreme Court addressed the issue of
whether the Justice Department may consider if a legislative plan violates
section 2 of the Voting Rights Act in determining whether to grant preclearance
under section 5 of the act.[46]
The Court held that preclearance may not be denied solely on the basis that the
voting plan violates section 2 but left open the Department’s ability to use
evidence of a section 2 violation in some degree when deciding whether there is
retrogression in the position of minorities.[47]

Challenges
to Majority-Minority Districts

For
most of this century, voting rights actions brought under the Constitution have
challenged practices that either were intended to or had the effect of abridging
or denying the rights of minorities to vote. Often in vote dilution cases
challenging at-large or multimember districts, the remedy ordered by the court
or agreed to by the parties involved the creation of single-member election
districts with majority voting-age populations. More recently, 14th Amendment
claims have been raised in opposition to the creation of majority-minority
districts.

United Jewish Organizations of Williamsburgh, Inc. v.
Carey,430 U.S. 144 (1977): In this case, a group of Hasidic Jews challenged a
New York State reapportionment plan, alleging that their 14th and 15th Amendment
rights were violated when a portion of their community was reassigned to an
adjoining district in an alleged effort to achieve a racial quota in districts.
The Supreme Court held that the use of racial criteria by the state in
attempting to comply with section 5 of the Voting Rights Act did not violate the
14th or 15th Amendments. The Court further held that compliance with the act
often requires the use of racial considerations in drawing district lines, and
the Constitution does not prevent the state from deliberately creating or
preserving black majorities in particular districts in order to comply with
section 5.

Shaw v. Reno, 509 U.S. 630 (1993): In this case, the
Court considered a 14th Amendment challenge by white voters to the creation of
two majority-black congressional districts in North Carolina. The Supreme Court
held that the plaintiffs stated a cognizable claim under the equal protection
clause of the 14th Amendment by “alleging that the legislation, though race
neutral on its face, rationally cannot be understood as anything other than an
effort to separate voters into different districts on the basis of race, and
that the separation lacks sufficient justification.”[48]

DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), aff’d
in part and appeal dismissed in part, 515 U.S. 1170 (1995): The court in
this case considered a challenge under the 14th and 15th Amendments to
California’s redistricting plan claiming that it was a racial gerrymander and
diluted white voter strength. The court rejected the claim, finding that the
plan was not a racial gerrymander, but instead properly considered race as one
of many factors along with traditional redistricting principles and the
requirements of the Voting Rights Act. The court found that strict scrutiny is
not required. The court found, however, that even if strict scrutiny were
required, the California plan was narrowly tailored to meet a compelling state
interest.

Miller v. Johnson, 515 U.S. 900 (1995): The Court in this
case considered the constitutionality of Georgia’s 11th Congressional
District, which was one of three majority-black districts created as a result of
the Georgia Legislature’s 1992 congressional redistricting plan. The Court
first upheld the lower court’s finding that race was the predominant factor
motivating the drawing of the 11th District, thus mandating the application of
strict scrutiny. The Court found that the state’s true interest in designing
the 11th District was not to remedy previous discrimination, but was to create a
third majority-black district to satisfy the Justice Department’s preclearance
demands. The Court, assuming arguendo that satisfying the Justice Department’s
preclearance demand was a compelling interest, held that the adopted plan was
not narrowly tailored to meet that interest since Georgia’s two previous plans
could not have violated section 2 of the Voting Rights Act.[49]

Shaw v. Hunt,517 U.S. 899 (1996): In this
case, the Court again considered the equal protection challenge to North
Carolina’s redistricting plan, which created two majority-black districts. On
remand from Shaw v. Reno, the district
court upheld the constitutionality of the plan, finding that it was narrowly
tailored to further the compelling interest of complying with sections 2 and 5
of the Voting Rights Act. The Supreme Court reversed the lower court decision,
holding that the plan was not narrowly tailored to further a compelling state
interest. The Court assumed, but did not decide, that compliance with section 2
could be a compelling state interest. The Court held that to be narrowly
tailored the action must remedy the anticipated violation or achieve compliance.
In this case, the Court found that the district could not remedy a potential
violation of section 2 because the district did not contain a geographically
compact population.

Bush v. Vera, 517 U.S. 952 (1996): The Court in this
case considered an equal protection challenge to three majority-minority voting
districts in Texas. The Court found that the districts were subject to strict
scrutiny, and that they were not narrowly tailored to serve a compelling state
interest. Again, the Court assumed that compliance with section 2 could be a
compelling state interest, but held that the districts in this case were not
narrowly tailored because they were bizarrely shaped and far from compact, which
was attributable to racially motivated gerrymandering that subordinated
traditional districting principles to race substantially more than was
reasonably necessary. The Court also held that for an interest in remedying
discrimination to be compelling, the discrimination must be specific and
identified.

Lawyer v. Department of Justice,521 U.S. 567 (1997): The
Court reviewed a legislative district of the Florida Legislature. In holding
that the district was constitutional, the Court noted that the evidence supports
the trial court’s opinion that race did not predominate Florida’s
districting decision. The appellants had argued that there was a subordination
of traditional districting principles evidenced by the facts that the district
encompassed more than one county, crossed a body of water, was irregular in
shape, and contained a percentage of black voters higher than the overall black
population in the constituent counties. The Court found that on each of the
points, the district was no different from what Florida’s traditional
districting principles could be expected to produce.

In
the midst of the litigation regarding redistricting and the Voting Rights Act,
another issue affecting redistricting has garnered attention. Subsequent to the
1990 census, the Census Bureau found that it had undercounted the population.
Based on the results of a “post-enumeration survey,” which attempted to
measure the rate at which people were omitted or erroneously enumerated by the
census, the Census Bureau determined that the 1990 census resulted in a national
undercount of 2.1 percent, or approximately 5.3 million persons out of a total
population of approximately 255 million.[50]
The undercount was greater for members of racial and ethnic minorities.
Hispanics were undercounted by 5.2 percent, African Americans by 4.8 percent and
Asian and Pacific Islanders by 3.1 percent.[51]

HISTORY
OF VOTING RIGHTS IN MISSISSIPPI

The
state of Mississippi was particularly resistant, even among southern states, to
the provision and protection of voting rights for African Americans following
the Civil War. Blacks in Mississippi did enjoy quick but short-lived political
participation during Reconstruction. In 1870, for example, 30 of the 107 members
of the Mississippi State House of Representatives were African American, as were
five of the 30 state senators. At that time, African Americans represented a
majority of registered voters in Mississippi.[52]

This
progress though did not last long. Those who were against black suffrage
resorted to various means to restrict the black vote. In 1890, Judge J.J.
Chrisman stated:

It
is no secret that there has not been a full vote and a fair count in
Mississippi since 1875—that we have been preserving the ascendancy of the
white people by revolutionary methods. In plain words we have been stuffing
the ballot boxes, committing perjury, and . . . carrying the elections by
fraud and violence until the whole machinery was about to rot down. No man
can be in favor of the election methods which have prevailed . . . who is
not a moral idiot.[53]

Further,
although the Military Reconstruction Acts of 1867 had required southern states
to adopt new constitutions granting suffrage rights to African American males,
the states were not prevented from later changing their constitutions. At
Mississippi’s constitutional convention in 1890, the so-called Mississippi
plan was adopted, which included several provisions intended to deny blacks the
right to vote, including a poll tax; a literacy test; a durational residency
requirement; a disenfranchising crimes provision; and a dual registration
system, which required separate voter registration for municipal elections.[54]
The goal of the convention was to “devise such measures, consistent with the
Constitution of the United States, as will enable us to maintain a home
government, under the control of the white people of the state.’”[55]
The Supreme Court upheld the constitutionality of Mississippi’s new
constitutional provisions, finding that the restrictions on voting did not
violate the 14th Amendment, because they did not, on their face, discriminate
between the races and because it had not been shown that the actual
administration was evil.[56]
These restrictions were codified by the Mississippi Legislature in 1892, and
thereafter, the number of blacks registered to vote dropped to 6 percent of the
eligible population.[57]

Efforts
in Mississippi to increase and maintain black disenfranchisement continued
throughout the 20th century. With the inception of primaries in 1902, the
Democratic Party permitted only white Democrats to participate.[58]
After the Supreme Court outlawed the whites-only primaries, the Mississippi
State Democratic Party passed a resolution in 1947 requiring those citizens who
wished to vote in the primaries to swear allegiance to the principles of the
party, which included opposition to federal legislation abolishing the poll tax,
punishing lynching, and establishing a fair employment practice commission.[59]

In
response to the beginnings of the voter registration movement in the 1950s, the
Mississippi Legislature in 1955 enacted several provisions intended to prevent
black voter registration, including a prohibition on satellite registration and
removal of the voter registration book from the county registrar’s office.[60]
This measure eliminated a previous statutory requirement that registrars visit
each precinct in the county to register voters, and meant that citizens had to
travel to the county courthouse to register to vote, often many miles away—a
burden much more difficult for blacks, who tended to be poorer and had less
access to transportation.[61]
Black voter registration in Mississippi, which had reached 22,000 citizens in
1954, dropped to 12,000 the next year.[62]

In
1960, the Mississippi Constitution was amended to require “good moral
character” as a qualification for voting, and in 1962 the Mississippi
Legislature passed a series of provisions to stop black voter registration.
These measures included a “good moral character” requirement and a procedure
for challenging the moral character of any applicant; a prohibition on any
assistance in filling out voter registration forms; a ban on registrars
providing applicants with reasons for rejecting their applications for
registration; a requirement that the names and addresses of all applicants be
published in the local paper; a requirement that the applicant copy a section of
the constitution selected by the registrar and write an interpretation of the
section and a statement of the duties and obligations of citizenship; and a
requirement that no application be approved unless all the blanks on the form
were properly and responsively filled out and both the oath and the application
form signed separately.[63]
In 1962, the State Legislature also enacted a statute requiring all
municipalities with a mayor-board of alderman form of government to elect their
aldermen on an at-large basis. The purported purpose of this law was “to
maintain our southern way of life.”[64]
Recently opened records of the Mississippi Sovereignty Commission reveal that
one circuit clerk in Union County remarked to an investigator to the Sovereignty
Commission that black registration was going well because the people signing up
were “good Negroes, not riffraff.”[65]
The clerk reportedly indicated that voter law restrictions, including the poll
tax and a literacy test, were keeping “riffraff” off the voting rolls.[66]

As
a result of these statutory and constitutional restrictions, along with
extensive and brutal voter intimidation and violence, only 6.7 percent of the
eligible blacks in Mississippi were registered to vote in 1964.[67]
In the Delta county of Sunflower there were 13,000 eligible black voters, but
fewer than 200 were registered. Similarly, in Leflore County, only 250 blacks
were registered out of a black population of approximately 30,000.[68]
The Mississippi State Legislature remained all white, in a state with a 42
percent black population, and the only black elected officials in the state were
the mayor and city council of the all-black town of Mound Bayou.[69]

Voter
registration rates for African Americans changed dramatically following passage
of the Voting Rights Act, with the black registration rate in Mississippi rising
to 59.8 percent of eligible voters by 1967.[70]
In response to the Voting Rights Act, the Mississippi Legislature in its 1966
session passed a series of measures changing the state’s election laws,
including switching from district to countywide elections; increasing filing
requirements for independent candidates; changing elected positions to appointed
ones; and combining majority-black counties with majority-whites ones. As a
result, 14 counties replaced district elections with at-large elections for
county boards of supervisors, 22 counties switched from district to at-large
elections for county boards of supervisors, 22 counties switched from district
to at-large elections for county school board races, and 46 towns and cities in
Mississippi changed to at-large elections for city council races.[71]

State
officials also engaged in racial gerrymandering in the years following passage
of the Voting Rights Act, particularly with respect to Mississippi’s five
congressional districts. The Mississippi Delta region, which has always had the
largest population of blacks in the state, historically constituted a single
congressional district, beginning in 1882 and continuing through redistricting
plans adopted in 1932, 1952, and 1962. In 1966, however, the Legislature redrew
the lines of the district and divided the Delta region among three congressional
districts, resulting in a majority white voting-age population in all five
districts.[72]
Racial gerrymandering also occurred with respect to county supervisor districts,
preventing the election of black supervisors even with the existence of
single-member districts.[73]

Obstacles
to black voting and candidacy continued in Mississippi, as documented by the
Commission during the 1970s. Blacks attempting to register and vote faced dual
registration requirements, erratic hours at the clerks’ offices, intimidation
and humiliation by registration officials, purging of voter registration rolls,
denials of ballots, and the location of polling places in all-white clubs and
lodges.[74]
African Americans seeking elective office also encountered barriers that made
running for office and winning extremely difficult. These barriers included
filing fees; obstruction by officials in obtaining information about qualifying
to run and lists of registered voters; restrictions on and interference with the
use of poll watchers by black candidates; discrimination in vote counting;
limited access to the white community during campaigns; and restrictions on
independent and third-party candidates.[75]

Litigation
under the Constitution and the Voting Rights Act, in addition to section 5
objections entered by the Department of Justice, were instrumental in increasing
access to the political process for black citizens of Mississippi and preventing
implementation of laws enacted by the Mississippi Legislature intended to
prevent black voter registration and participation.

Dyer v. Love, 307 F. Supp. 974 (N.D. Miss. 1969):
This case concerned the districts for the Washington County Board of
Supervisors. The court held that absent clearance by the Attorney General under
section 5 of the Voting Rights Act, the board of supervisors for Washington
County did not have the authority to order at-large elections for county
supervisor positions.

Moore v. Leflore County Board of Election
Commissioners,502 F.2d 621 (5th Cir. 1974): The court in this case upheld the decision
of the lower court, which ordered the county to hold district elections rather
than at-large elections for the Leflore County Board of Supervisors because
at-large elections diluted black voting strength and failed to take into
consideration legitimate planning objectives. The court also rejected a county
reapportionment scheme that diluted black voting strength and adopted another
plan that created a majority-black voting-age population in four out of the five
districts.

Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss. 1975):
This case involved a challenge under the 14th and 15th Amendments to the 1962
Mississippi statute that required at-large elections for all aldermen and city
council positions in municipalities, where they formerly had been elected from
wards. The court held that the statute violated the 14th and the 15th Amendments
as a purposeful device conceived and operated to further racial discrimination
in voting.

O’Neal v. Simpson,350 So. 2d 998 (Miss. 1977), cert.
denied, 435 U.S. 934 (1978): The Mississippi Supreme Court in this case
considered a challenge to a Mississippi statutory provision that dictated that
illiterate voters could receive assistance only from election managers whereas
blind and disabled voters could receive assistance from any person of their
choice. The court held that the provision violated the equal protection clause
of the 14th Amendment.

Black
political participation and registration in Mississippi began to increase slowly
throughout the 1970s and 1980s. Mississippi elected 22 black candidates
statewide in the 1967 elections, mostly in justice of the peace and constable
offices.[76]
Included in this number was the state’s first black state legislator elected
since Reconstruction, Robert Clark, who testified, “I was elected November
1967. And, incidentally, when Mayor Blackwell was talking about not being able
to vote, . . . the first time I voted, I voted for myself in 1967.”[77]
In 1968, Mississippi had a total of 29 black elected officials, and by 1974,
this number had risen to 191. As of 1974, however, Mississippi still had only
one black state legislator, far fewer than other southern states, all of which
had lower black populations. For example, Alabama had 15 black state
legislators, Georgia 22, Louisiana 9, North Carolina 6, and South Carolina 13.[78]
The primary reason for the dearth of black state legislators was the election
plan in use at that time, which comprised mostly multimember districts. In 1971,
29 black candidates ran for office in multimember districts, and all but one of
them were defeated. By 1979 Mississippi instituted a new single-member district
plan for the Legislature, and 17 blacks were elected, 15 to the House and two to
the Senate.[79]

A
new plan for Mississippi’s congressional seats also led to the election of the
state’s first black congressman. In 1981, the Department of Justice filed a
section 5 objection to Mississippi’s congressional district plan. As a result,
a federal judge developed a new plan, including the Second Congressional
District, which encompassed the Delta region and created the only majority-black
district.[80]
In 1986, Mike Espy was elected from that district, becoming the first black
congressman from Mississippi since Reconstruction.

During
the 1980s, many battles were still being fought in Mississippi with respect to
local election districts to ensure the protection of voting rights for African
Americans. Litigation continued, with the filing of more than 30 county
redistricting cases, and Mississippi’s dual registration system, in effect
since 1890, was finally overturned.[81]
The Department of Justice continued to monitor changes in election procedures in
Mississippi, entering 48 section 5 objections to redistricting plans in 28
counties.[82]

Kirksey v. Board of Supervisors, of Hinds County,
Mississippi,554 F.2 139
(5th Cir.), cert. denied, 434 U.S. 968
(1977): This case involved a challenge by black plaintiffs to the establishment
of a court-approved plan proposed by the Hinds County Board of Supervisors for
voting districts in Hinds County, Mississippi. The plan created five districts
that divided the predominately black city of Jackson, none of which had a
majority voting-age population. Although the county had a black population of
39.1 percent, no black had ever been elected to a county office. The Fifth
Circuit held that the plan violated the 14th and 15th Amendments because it
canceled or minimized the voting strength of the black minority by fragmenting a
geographically concentrated minority and perpetuating a history of denial of
access. On remand, the district court in Kirksey
v. Board of Supervisors,
of Hinds County, Miss., 468 F. Supp. 285 (S.D. Miss.
1979), approved the new plan that created two districts that had black
voting-age populations of 55 percent or more. In the 1979 county elections, two
black candidates were elected as county supervisors. They were the first black
county supervisors elected in Hinds County since Reconstruction.[83]

Jordan v. City of Greenwood, Mississippi,599 F. Supp. 397 (N.D. Miss. 1984): In this case, the court found that
Greenwood’s at-large commission form of government violated section 2 of the
Voting Rights Act.

Mississippi State Chapter, Operation PUSH v.
Allain,674 F. Supp.
1245 (N.D. Miss. 1987), aff’d sub nom.,
Mississippi
State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir 1991): In this case, the court considered a
section 2 challenge to a dual registration requirement and a prohibition on
satellite voter registration. Under Mississippi statute, to be a qualified
elector for all municipal elections, a resident was required to register with
the municipal clerk after having registered at the office of the county
registrar. In addition, only municipal clerks who had been appointed as deputy
county registrars were eligible to register voters for county, state, and
federal elections. This often required residents to travel long distances to a
county seat in order to register for nonmunicipal elections and resulted in a
black voter registration rate that was 25 percent below that of white citizens.
The court found these practices to be in violation of section 2 of the Voting
Rights Act.[84]

Martin v. Allain,658 F. Supp. 1183 (S.D. Miss. 1987): In
this case, the court considered a section 2 challenge to the at-large
post-election methods and the multimember districts used to elect circuit,
chancery, and county court judges. The court held that although many of the
factors considered in the “totality of the circumstances” test applied to
all the judicial districts, the plaintiffs proved a violation of section 2 only
with respect to certain districts, those in which there was a sufficiently large
and geographically compact minority group which could constitute a majority in a
single-member district. In Martin v. Mabus,
700 F. Supp. 327 (S.D. Miss. 1988), the court ordered the creation of
single-member subdistricts as a remedy for the section 2 violation in Martin
v. Allain.

As
a result of these and similar actions, the number of black elected officials in
Mississippi began to rise gradually throughout the 1980s and into the 1990s.
Many majority-black counties in the Mississippi Delta, that had no or only one
black supervisor until the late 1980s, began to elect black representatives (see
appendix A). Similar increases occurred with respect to black representation in
municipal elected offices. Whereas in 1965 most cities and towns in Mississippi
elected city council and board of aldermen members through at-large elections,
by 1988 most had converted to ward or single-member district plans. As a result,
the number of black elected officials on municipal governing bodies rose
substantially throughout the 1980s, nearly doubling between 1984 and 1993 (see
appendix B).

CURRENT
POLITICAL REPRESENTATION IN MISSISSIPPI

Although
progress was slow, by the mid-1990s Mississippi had more black elected officials
than any other state. Particularly in the Delta, where all the counties are
majority black, political representation for African Americans has risen
significantly.

Redistricting
at the state and local levels continued after the 1990 census. Litigation filed
in 1991 resulted in reapportionment of the State Legislature after which the
number of black representatives doubled. Before redistricting the State
Legislature was 11 percent black in a state with a black voting-age population
of 31.6 percent. By the time of the Commission’s hearing in March 1997, the
State Legislature was 25.9 percent black, with 10 black senators, up from two,
and 35 black representatives, up from 21.[85]
Robert Clark testified that there were several majority-black districts that did
not elect a black member due to political differences among the black voting
population.[86]

Testimony
given at the Commission’s hearing indicated that Mississippi now has more
black elected officials than anywhere else in the United States.[87]
By the end of 1992, there were more than 825 black elected officials in
Mississippi.[88]
Overall, nearly 200 black elected officials were women.[89]
Unita Blackwell noted, however, that women are not adequately represented in
leadership position: “We are the workers, but we [are] still . . . trying to
come into our own. And I’m not just talking about black women; I’m talking
about all women in the Mississippi Delta.”[90]

Some
reports indicate that with the dramatic increase in black representation in the
Mississippi Legislature, there has been racial polarization among the members of
the Legislature. State Representative Barney Scobey stated he had never seen a
session more divided along racial lines than the one ending in April 1993 in
which black representation in the Mississippi Legislature had doubled.[91]
White lawmakers counter that black lawmakers “can’t deliver politically . .
. simply because they are not in step with a majority of voters in Mississippi.”[92]
As recently as March 1998, the state Senate voted along racial lines, 39 to 9,
rejecting a proposal to compensate the families of civil rights workers killed
during Mississippi’s civil rights era.[93]

In
1949, political scientist V.O. Key stated that “the beginning and the end of
Mississippi politics is the Negro.”[94]
Race and politics continue to be intertwined in Mississippi nearly half a
century later. For example, in the 1995 mayoral election in Greenville, George
Patton, a Greenville city councilman and mayoral candidate, accused Paul Artman,
a fellow councilman and mayoral candidate, of conspiring to prevent a black
majority on the council.[95]
Both candidates were white. Artman and the others alleged to be involved denied
the charges. Artman, who ultimately won the race, stated he was “greatly
saddened for Greenville that everything must turn to race, especially when it
comes to political gains.”[96]

Racial
Bloc Voting

The
increase in the number of black elected officials in Mississippi can be
attributed primarily to the creation of majority-black districts.[97]
In the 1980s, almost 90 percent of the black southern legislators were elected
from majority-black districts. Only four of the nearly 600 black elected
officials in Mississippi in 1988 were elected from majority white districts, and
only 19 were from districts that were less than 65 percent black.[98]
Similarly, throughout the South, much of the increase in the number of black
southern legislators has resulted from an increase in the number of
majority-black districts.[99]

Witnesses
at the Commission’s hearing expressed some optimism that white crossover
voting existed. Benjamin Griffith noted that Mike Espy received a substantial
amount of white support in his re-election to the Congress in 1988.[100]
In his first bid for the seat, however, former Congressman Espy received little
white support.[101]
Further, after hearing evidence in 1987 from both sides’ experts whose results
and conclusions were “essentially the same,” the court in Martin v. Allain found that “racial polarization of voters exists
throughout the State of Mississippi . . . blacks overwhelmingly tend to vote for
blacks and whites almost unanimously for whites in most black versus white
elections.”[102]

Benjamin
Griffith expressed concern that the gains made by enforcement of the Voting
Rights Act will be “questioned because of a few—and I emphasize, a very few—instances
of either local or statewide racially gerrymandered districts. This is not good.
And I think it comes back to a concern that the Voting Rights Act through
utilization of race-predominant districting has turned into a resegregation
tool.”[103]
Referring to the recent Supreme Court voting rights cases, Benjamin Griffith
testified to the Commission that:

Those
cases have generated few racial gerrymander challenges, not in the Delta,
but in counties that are peripheral to the Delta. And my concern is we’ve
created in some cases unjustifiable majority/minority districts. In this
context I mean unjustifiable in the sense of shape and race being the
predominant motive for creating those. . . . Hopefully, that will not be the
case in Mississippi, but I’ve got grave concerns about the Second
Congressional District [in Mississippi] . . . We don’t need litigation
over racially gerrymandered districts to start undercutting the massive and
worthy gains that fighting and litigation and years of toil have led us. And
these are good results that I’m afraid that, at least in some quarters,
are being jeopardized.[104]

Barriers
to Black Political Participation

Although
significant progress has been made, subtle barriers to full political
participation remain. Black voter registration and voting still lag behind that
of white citizens.[105]
Luther Alexander testified that “[v]oter registration hasn’t been a problem,
but we have had problems in getting people to vote. So apathy is something we
need to discuss this morning: why people don’t vote.”[106]
He expressed concern that voter apathy would lead to the loss of black elected
officials.[107]
The primary reason for this shortfall appears to be cynicism among black
citizens and a loss of confidence in government and in the ability of officials
to change their lives.

While
some point to the historical condition of African Americans in Mississippi as
affecting voter registration, Benjamin Griffith testified that the “extent to
which there’s a direct relationship between past official discrimination
against African American citizens, the extent of that relationship as it
compares to black electoral participation is getting more and more tenuous, more
and more attenuated.”[108]
In a similar vein, Robert Sanders, assistant attorney general in Mississippi,
stated:

In
every election . . . people are urged to [vote] . . . the media are flooded
with requests to vote. In between elections all public officials that I know
of are constantly going around and talking to high schools, even the junior
highs, imploring kids to get interested in the process. It’s simply at
some point, it’s a question of individual behavior, whether people want to
vote or not . . . , there aren’t barriers to registering.[109]

Witnesses
testified about the correlation between electoral participation, and poverty and
education. Mr. Griffith testified as to his belief that “education is
absolutely the key, without which we’ll make no progress in the Mississippi
Delta. In electoral participation—minority access and mobilization—I think
the two are directly related, and I think those also are directly related to
poverty.”[110]
Similarly, Ms. Blackwell testified that “when you study the poverty,
economics, the education, all of that hooks in together [with voting]. You’ve
got to have [all] of it going together. If you don’t have it all going
together, you know, that’s how we fall down on this side.”[111]

Census
figures demonstrate that voter participation increases dramatically with family
income (see table 3.1). For example, among families with income between $5,000
and $9,999, the percentages who were registered and those who actually voted in
November 1994 were 40.6 percent and 20 percent, respectively. Similarly, among
those whose income was between $10,000 and $14,999, 51 percent were registered
and 33 percent voted in November 1994. In contrast, among those with a family
income of at least $50,000, 76.8 percent were registered and 60.1 percent
actually voted. While 25.2 percent of Mississippi’s population had income in
1989 below the poverty line, the percentage of the black population with income
below the poverty line is much higher, at 46.4 percent.[112]
In contrast, only 13.2 percent of the white population had income below the
poverty level in 1989.[113]

TABLE
3.1Voting and Family Income in the 1994 Election

%
registered

%
voted

Under
$5,000

40.6

20.0

$5,000–$9,000

43.2

23.5

$10,000–$14,999

51.0

33.0

$15,000–$24,999

58.0

40.4

$25,000-$34,999

63.1

44.9

$35,000–$49,999

68.1

50.1

$50,000
and over

76.8

60.1

Not
reported

54.6

41.3

Source:
U.S. Department of Commerce, Bureau of the Census, “Characteristics of
the Voting-Age Population Reported Having Registered or Voted: November
1994,”
<http://www.census.gov/population/socdemo/voting/profile/ptable>.

TABLE
3.2Voting and
Educational Attainment in the 1996 Election

%
registered

%
voted

Less
than high school

40.7

29.9

Some
high school

47.9

33.8

High
school graduate

62.2

49.1

Some
college, including

associate degree

72.9

60.5

bachelor’s degree or higher

80.4

72.6

Source:
U.S. Department of Commerce, Bureau of the Census, “Voting and
Registration: November 1996,” table 23,
<http://www.census.gov/population/socdemo/voting/history/vot23>.

Census
figures also demonstrate a strong correlation between educational attainment and
voter participation (see table 3.2). For example, in the November 1996 election,
voter turnout among those with only some high school education was 33.8 percent,
compared with a 72.6 percent turnout among persons with at least a bachelor’s
degree.

In
Mississippi, there are discrepancies in educational attainment among blacks and
whites. Among persons 18 to 24 years old, the percentage of whites with a high
school degree or better is 78.1 percent; the percentage of blacks who have
achieved at least a high school degree is 65.7 percent.[114]
The discrepancy becomes wider among older persons. For example, 71.7 percent of
whites and 47.3 percent of blacks who are 25 years old and over have at least a
high school degree.[115]
Among persons over 24 years old, the percentage of whites having a bachelor’s
degree is nearly twice that of blacks.[116]
Among persons 25 to 34 years of age, the percentage of white and black males who
have a bachelor’s degree is 19.6 percent and 6.6 percent, respectively.[117]
The percentage of white and black females who have a bachelor’s degree is 19.9
percent and 10.3 percent, respectively.[118]

Brenda
Wright offered another reason contributing to a lack of political participation:
a decrease in grassroots organizing. She stated:

There’s
so much attention on spending money and buying TV ads and so much less
attention on grassroots and knocking on doors, even by the major political
parties, calling up voters and finding out, you know, are you going to the
polls. . . . I know some nationwide studies have looked at that as a
possible cause of declining voter participation.[119]

Ellis
Turnage offered the Commission some suggestions on increasing black political
participation. He noted that hotly contested races draw minorities out to vote.
Some come to the polls on election day because “they’re too ashamed on
election day to say I’m not registered, and they’ll come down anyway and
vote an affidavit ballot.”[120]
He suggested that Mississippi allow these people to register for the next
election.[121]
He also advocated that at-large districts be eliminated throughout Mississippi.[122]
Finally, he suggested that the state provide money for “get out the vote”
efforts.[123]

Remnants
of the former dual registration system still affect some citizens. As noted
earlier, Mississippi voters previously had to register for municipal elections
with the municipal clerk after having registered at the office of the county
register.[124]
Because elimination of the dual system was not retroactive, persons who
registered at the county before 1988 would still be unregistered for municipal
elections.

Another
issue affecting black voter registration is the disenfranchisement of African
American voters because of felony convictions. As more young blacks are being
put through the criminal justice system, they are losing the right to vote. A
recent study by the National Sentencing Project reported that about 4.2 million
voting-age Americans cannot vote because they are in prison, on parole, or have
permanently lost the right to vote because of their convictions.[125]
Of that number, about 1.4 million are black males, which means that one in seven
otherwise eligible black males cannot vote.[126]
In Mississippi, one who has been convicted of certain crimes as listed in the
state’s constitution may not vote even if he has already served his term.[127]
In 1997, Representative John Conyers (D-MI) introduced legislation that would
give former offenders who are otherwise qualified the right to vote in federal
elections once they have been released from prison.[128]

African
Americans running for office also encounter obstacles. Ms. Blackwell testified
as to the importance of money in elections.[129]
Black candidates in Mississippi are not as well financed as white candidates and
have difficulty raising money.[130]
White candidates often have the ability to hire poll watchers, a luxury few
black candidates can afford. Robert Clark noted, “When I ran for Congress in
‘82 and ‘84, if we had gotten three more votes in each box throughout the
district, we would have been the winner. But when we analyzed our votes we
analyzed certain areas that had the same minority percentages, where we had poll
watchers we won in those areas. And in similar areas where we did not have the
poll watchers, we lost.”[131]

Impact
of Black Political Power in Mississippi

Although
African Americans in Mississippi have achieved substantial electoral success,
the ability to translate that success into economic gain and power has been less
certain. According to Children’s Defense Fund figures, more than half the
state’s black children lived below the poverty line in 1990.[132]
Census figures also indicate that black per capita income was less than half
that of whites in Mississippi.[133]
With respect to the Mississippi Delta, 53 percent of its black residents live in
poverty, compared with 13.1 percent for the nation as a whole.[134]

Robert
Clark testified that “the greatest deterrent to progress in the state of
Mississippi is the lack of economic development.”[135]
He noted, “We have the black political power. We have the greatest number of
black elected officials, but we have not transformed that into economic
development.”[136]
Mr. Clark posited that the black members of the Legislature “have not
successfully united to use our force the way we should. We’re too hung up on
individual personalities, rather than forgetting that and uniting for the cause.”[137]

Ellis
Turnage, an attorney from Cleveland, Mississippi, was even more critical in
assessing the failure of black political representation in improving the quality
of life for Mississippi’s black citizens. In response to a question regarding
whether any change has occurred, he replied, “Very little.”[138]
In following up, Mr. Turnage noted:

If
it was my . . . intention to increase the quality of life for voters or
citizens in my political subdivision, if that was my goal or my aim, then
you’d all be able to see evidence in the quality of life, improvements in
housing, education, the likes. I see very little of that. . . . I listened
to my fellow comrade from Cleveland, Mr. Griffin, talk eloquently about the
progressiveness and how they had the first county administrator in
Mississippi and all of the jobs that they have brought to Bolivar County and
everything. . . . I haven’t been able to see the same changes that he
sees. . . .

If
. . . my stated objective and intent is to increase the economic attainment
of black voters in this country, then you ought to be able to produce
statistical evidence to document that. And I’m not seeing it.[139]

As
noted above, the increase in black representation in Mississippi’s Legislature
has been accompanied by increased racial polarization in the Legislature. This
polarization has hindered the effectiveness of black legislators. For example,
State Representative Barney Scobey noted in 1993 that white lawmakers did not
appoint blacks to key committee posts commensurate with their numbers and
frustrated legislative initiatives introduced by blacks.[140]
In contrast, the 1980s saw black legislators wielding considerable influence by
allying themselves with moderate white Democrats. The efforts of the biracial
coalition resulted in doubling state spending on education, tripling Medicare
funding, adopting landlord-tenant reforms, and passing affirmative action
legislation with respect to state contracts.[141]

Moreover,
others point out some steps toward progress. When Unita Blackwell was elected
mayor of Mayersville in Issaquena County, she had four sets of public housing
built. It was the first time that the federal housing program had ever been in
that county. Problems of water shortages and clean water access in the Delta
have been addressed through increasingly effective federal representation,
beginning with Mike Espy and continuing with Bennie Thompson. Their action has
brought in federal grants and low interest loans for water projects and other
programs that are trying to reach into these pockets of poverty and provide
sewage control, sanitation, and infrastructure.[142]
Further, as discussed in chapter 1, the Delta also is the location of an
empowerment zone that residents hope will spawn greater economic development.

Some
have pointed toward other noneconomic benefits to black political empowerment in
Mississippi. Frank Parker noted that racial violence against blacks in
Mississippi, while not eliminated, has dramatically declined since the increase
in black voter registration after 1965.[143]
Moreover, he noted that racial rhetoric in political campaigns has been
curtailed.[144]
Further, Parker also found that the influence of black voters, though not a
statewide black majority, has changed the white state leadership.[145]
In addition, Robert Clark noted that the attitude of the Legislature has become
more considerate toward black members and to black Mississippians since the
increase in black political representation.[146]

NATIONAL
VOTER REGISTRATION ACT

In
1993, Congress passed the National Voter Registration Act[147]
(NVRA), commonly known as the motor voter law, which requires states to make
registration more accessible through motor vehicle administrations, welfare and
disability agencies, libraries, the U.S. mail, military recruitment offices, and
other outlets. A report by Human SERVE, a nonprofit lobby for voter registration
reform, estimates that a record 11.2 million Americans registered to vote in
1995, a greater number than at any time since voter registration practice was
established in the late 19th century.[148]
The Christian Science Monitor reported
that between the 1994 midterm elections and October 1996, more than 22 million
Americans had registered or reregistered to vote under the motor voter law.[149]
In Mississippi, an estimated 10,000 citizens registered under the law.[150]
According to Brenda Wright, Mississippi had one of the lowest percentages of
NVRA transactions relative to its voting-age population from January 1995
through June 1996, the first 18 months of the NVRA’s operation, than any other
state.[151]

Prior
to the implementation of the motor voter law, Mississippi had a unified system
for voter registration in which a person was eligible to vote in any election,
whether federal, state, or local, upon registering to vote.[152]
The unified system included voter registration by mail, availability of state
voter registration forms at drivers’ license offices, and fairly uniform local
voter registration procedures.[153]
Mississippi had implemented the unified system following federal court decisions
that the previous dual registration requirement violated section 2 of the Voting
Rights Act because it had resulted in a “denial or abridgment of the right of
black citizens in Mississippi to vote and participate in the electoral process.”[154]

Upon
first implementing the motor voter law, Mississippi continued to maintain the
unified system for those registering to vote in both federal and state elections
for those voters registering pursuant to the state’s pre-existing procedures.[155]
Those voters registering at motor vehicle or other locations pursuant to the
motor voter law, however, are allowed to vote only for federal offices. Those
who wished to vote for state and local offices have to register under the state’s
pre-existing procedures. Mississippi is the only state in the nation with
separate registration procedures for federal and state elections for those
registering under the NVRA.[156]
Unita Blackwell spoke of her 1965 appearance before the U.S. Commission on Civil
Rights: “At that particular time I came to talk about that I could not
register to vote, and I am here today with that same concern about registering
to vote.”[157]

Four
Mississippians challenged the legitimacy of the two registration systems,
alleging that the confusion engendered by separate registration systems may
result in discrimination against black voters.[158]
Specifically, they argued that Mississippi should be required to preclear its
dual registration system with the Justice Department.[159]
Brenda Wright, attorney for the plaintiffs in Young v. Fordice, testified
at the Commission’s hearing that:

Congress
enacted the NVRA in an effort to make voter registration easier and more
convenient. . . . We filed the . . . lawsuit in 1995, because Mississippi
has chosen to implement the NVRA in a manner that creates burdens and
obstacles to voter participation, where none should exist. Mississippi
alone, among all other states that have implemented the NVRA, allows NVRA
registrants to vote only in federal elections, and it requires them to
register again separately under different procedures to be eligible for
state and local elections. This takes Mississippi back to the days of dual
registration requirements, the type of requirement that was found to be
racially discriminatory in a federal court decision as recently as 1987.[160]

In
its response to the lawsuit, Mississippi countered that it had no duty to submit
its system for Justice Department approval because it never underwent the kind
of change requiring preclearance under the Voting Rights Act of 1965. In its
answer to the petitioner’s complaint, Mississippi stated it was “merely
administering its existing, and precleared, state election system, while, at the
same time, administering the requirements for federal elections as imposed upon
it by the federal government.”[161]

Brenda
Wright told the Commission that Mississippi’s refusal to implement a unified
registration system under the NVRA must be viewed in the historical context of
the prior dual registration requirement. As noted above, until 1987, Mississippi
maintained a dual registration system for municipal and state elections;
citizens who wished to vote in municipal elections had to first register with
the circuit clerk of the county and then register separately with the municipal
court. In 1987, a district court ruled that “Mississippi’s statutory dual
registration requirement. . . . [was] adopted for a racially discriminatory
purpose.”[162]

Ellis
Turnage testified that he had examined the rolls of voters registered in Bolivar
County under the NVRA. Based on his personal knowledge and experience as legal
counsel to the Bolivar County Board of Election Commission, Mr. Turnage
testified, “I can tell you or represent to you that the people who are using
motor voter in my county are overwhelmingly black.”[163]
The Department of Justice, in its preclearance objection letter, stated that “it
appears likely that a majority of the applicants for voter registration under
the NVRA in Mississippi are black.”[164]

Shortly
after the Commission’s hearing, the Supreme Court handed down its decision in Young
v. Fordice. The District Court for the Southern District of Mississippi had
ruled that Mississippi’s maintenance of dual registration rolls for federal
and state elections, in contrast to its previous unitary system, is a creation
of the federal government through the National Voter Registration Act.[165]
Because it was not the state’s creation, the district court ruled it did not
require preclearance under section 5.[166]
The Court reversed the district court’s decision and held that Mississippi
must preclear the dual system that was put into place in an effort to satisfy
the NVRA.[167]
The Court noted the confusion resulting from the separate registration systems
“probably would have led [NVRA registrants] . . . to believe that NVRA
registration permitted them to vote in all elections” and “might well
mislead if they cannot in fact be used to register for state elections.”[168]
In fact, the Justice Department noted that there appeared to be widespread
agreement among election officials in Mississippi that NVRA voters were
significantly confused about their inability to vote in state and local
elections under the separate registration system.[169]

Luther
Alexander testified that the chairman of the election committee in Mississippi’s
Senate refused to pass the motor voter bill (allowing for registration of state,
local, and federal elections under the NVRA) because:

it
is tied up in court. And historically when something has been in court,
historically we have not taken it up. . . . [H]e is saying if we pass the
bill, then Mississippi is going to be liable for paying the fees of the
lawyers that file the suit. And that’s his reason, but it shouldn’t ever
have had to go to court.[170]

Mr.
Sanders voiced another concern with respect to implementing the NVRA in
Mississippi. He noted that once Mississippi allowed NVRA registrants to vote in
state and local elections, the NVRA would become the benchmark for voting in
Mississippi. He presented a scenario in which Congress decided to change the
NVRA to provide for same day registration:

If
the individuals in the Mississippi Legislature were to say . . . we want to
decouple from the NVRA . . . because we just don’t like the direction that
the Congress has gone . . . we’d have to pass legislation and submit that
decoupling legislation to the attorney general for preclearance and I doubt
very seriously that we would ever get preclearance, and I doubt that we
would be successful in a declaratory judgment action with the district
court.

The
effect of being unable to decouple would simply be in the view of many
people . . . to cede authority or control of Mississippi registration law to
the Congress, and that is a step that many people in the Legislature are
very hesitant to take. And that is a fundamental concern because we think
obviously voting is a core right and any political unit’s authority to
control the registration of voters is also a core function of state
government . . .[171]

The
Secretary of State’s Office reported that 78 of the 82 circuit clerks in
Mississippi indicated they wanted the state to pass a motor voter law.[172]
Moreover, Mississippi incurs “roughly a half million dollar cost per election
year . . . for keeping separate books and for putting forth the efforts required
to maintain the voting place in the proper way.”[173]

In
September 1997, the Justice Department determined that Mississippi’s separate
registration system discriminated against black voters and refused preclearance
under section 5 of the Voting Rights Act.[174]
Among other things, DOJ noted that public assistance clients were given the
opportunity to vote solely through the NVRA forms, which only register voters
for federal elections.[175]
The majority of these clients are black.[176]
In contrast, the drivers’ license offices of the Mississippi Department of
Public Safety are offered a choice between state forms and NVRA forms; many
voters choose the state forms.[177]
According to statistics reported by the state, it appears that persons who
obtain drivers’ licenses and picture identification cards at drivers’
license offices in Mississippi are predominantly white.[178]
DOJ noted, “The state has administered this new dual registration requirement
in such a way that discriminatory effects on black voters were not just
foreseeable but almost certain to follow.”[179]

The
Mississippi Senate passed a bill in January 1998 which provides that those
registered through the NVRA will be registered for state and local elections as
well.[180]
The House Apportionment and Elections Committee, voting to reject amendments by
the chairman that would have required Mississippi voters to present
identification upon voting, sent the Senate bill to the full House.[181]
In his State of the State Address, Governor Kirk Fordice promised to veto motor
voter legislation that did not require all citizens to provide identification at
the polls.[182]
In the same address, he called the NVRA “an unwarranted federal intrusion”
into “one of the most open voter registration processes in the country” and
said that it opened the door to fraud.[183]
Governor Fordice reportedly has also called the NVRA the “welfare-voter.”[184]

Governor
Fordice fulfilled his promise to veto motor voter legislation without provisions
for identification at the polls. In late February 1998, Governor Fordice vetoed
a motor voter bill sent to him by the Legislature that did not include voter
identification requirements.[185]
Some black Mississippians are reportedly against such a measure because they
remember obstacles erected by the state to keep them from voting in the past.
Responding to charges of racism, Governor Fordice stated, “Vote fraud is an
equal-opportunity election stealer. It is certainly not, by any stretch of the
imagination, a black issue or a white issue.”[186]
He angered many lawmakers who opposed voter identification by saying, “It took
me a while to come to that realization. Those who oppose us on this, many of
them are here because of voter fraud.”[187]

The
plaintiffs who had opposed the separate registration system returned to court to
request that the court impose a remedy similar to the legislation that had been
vetoed by the governor.[188]
The U.S. District Court for the Southern District of Mississippi issued an order
in Young v. Fordice on October 5,
1998, enjoining the state of Mississippi from denying the right to vote in any
state, county, or municipal election to any voter who is registered and
qualified to vote in federal elections under the NVRA. On April 18, 2000,
Mississippi ended its history of resistance to the motor voter law when recently
elected Governor Ronnie Musgrove approved House bill 763, which adopted the
provisions of the NVRA.

[1]
More specifically, the constitutional provisions addressed the right of
African American men to vote. Women were not guaranteed the right to vote
until ratification of the 19th Amendment to the Constitution in 1920.

[34]
42 U.S.C. §§ 1973aa, 1973aa-1 (1994). The voting age reduction to age 18
was passed in the Voting Rights Act Amendments of 1970, Pub. L. No. 91-285,
§ 301, 84 Stat. 301. The 26th Amendment later became law on July 1, 1991.
The 26th Amendment states, in part, that “[t]he right of citizens of the
United States, who are eighteen years of age or older, to vote shall not be
denied or abridged by the United States or by any State on account of age.”
U.S. Const. amend XXVI. The
current version of § 301 deals with the enforcement of the 26th Amendment.
42 U.S.C. § 1973bb (1994).

[37]See also B.C. Foreman v. Dallas County, Tex., 521 U.S. 979 (1997)
(holding that preclearance was necessary despite the fact that the county
was exercising its “discretion” pursuant to state statute when it
adjusted the procedure for appointing election judges according to party
power); NAACP v. Hampton County Election Comm’n, 470 U.S. 166, 178 (1985)
(holding that even administrative efforts to comply with a precleared
statute may require separate preclearance because section 5 reaches informal
as well as formal changes).

[38]
This section provides that “[n]o voting qualification or prerequisite to
voting, or standard, practice, or procedure shall be imposed or applied by
any State or political subdivision in a manner which results in a denial or
abridgment of the right of any citizen of the United States to vote on
account of race or color. . . .” 42 U.S.C. § 1973 (1994).

[49]
The case was remanded to the district court, which deferred to the State
Legislature. After the Legislature was unable to reach agreement, the court
drew its own plan, containing one majority-black district. The district
court’s plan was challenged by voters and by the United States alleging
that the plan did not adequately take into account the interests of Georgia’s
black population. The Supreme Court upheld the district court’s plan in
Abrams v. Johnson, 521 U.S. 74 (1997).

[50]
City of New York v. U.S. Dept. of Commerce, 34 F.3d 1114, 1121 (2d Cir.
1994), rev’d, 517 U.S. 1 (1996).

[51]Id. at 1121–1122. Reversing the Second Circuit’s opinion, the
Supreme Court held that the decision by the Secretary of Commerce not to
statistically adjust the census using the postenumeration survey violated
neither the Constitution nor federal law. Wisconsin v. City of New York, 517
U.S. 1, 24 (1996).

[67]
USCCR, Voting Rights Act, p. 43, table 3. This registration rate was
low even in comparison to other southern states, where the black
registration rates were as follows: Alabama, 19.3 percent; Georgia, 27.4
percent, Louisiana, 31.6 percent; North Carolina, 46.8 percent; South
Carolina, 37.3 percent; and Virginia, 38.3 percent. Even though the
registration rates for African Americans in these states were higher in
comparison to Mississippi, they still were 30 to 50 percentage points lower
than white registration rates. Ibid.

[80]SeeJordan v. Winter, 604
F. Supp. 807 (N.D. Miss.), aff’d,
469 U.S. 1002 (1984), in which the court held that the interim congressional
redistricting plan, which divided the black population of the state into two
high-impact districts rather than concentrating it into one district,
violated section 2 by diluting minority voting strength. The court then
approved a new plan that provided for a black voting-age majority in one of
Mississippi’s five congressional districts.

[82]
Parker, Black Votes Count, p. 152.
Each county in Mississippi is governed by a five-member board of
supervisors. The districts from which the supervisors are elected also
function as election districts for school board members, election
commissioners, justices of the peace, and constables. Ibid., pp. 152–53.

[90]
Blackwell Testimony, Hearing Transcript, p. 688. The first black female
legislator in Mississippi was not elected until a special election in 1985
to fill a vacancy. In 1987, Mississippi became one of the first Deep South
states to have a black woman in the State Senate when Senator Alice Hardin
was elected, in Parker, Black Votes
Count, pp. 142–43.

[98]See Martin v. Allain, 658 F. Supp. 1183, 1195 (S.D. Miss. 1987) (four
blacks elected from majority-white districts); Martin v. Mabus, 700 F. Supp.
327, 333–34 n. 1 (S.D. Miss. 1988) (19 black officials elected from
majority-black districts with less than 65 percent black). The “65-percent
rule” has been widely recognized by courts as the percentage at which
black voters will be able to elect the candidates of their choice. The
figure reflects the reality that blacks generally constitute a smaller
proportion of the voting-age population than of the total population, are
registered to vote at lower rates than whites, and turn out to vote at lower
rates than whites. See, e.g., Ketchum v. Byrne, 740 F.2d 1398, 1415–17
(7th Cir. 1984), cert. denied, 471
U.S. 1135 (1985) (indicating that the 65-percent rule is widely recognized
and accepted). But see James v. City of Sarasota, Fla., 611 F. Supp.
25, 32–33 (M.D. Fla. 1985) (appending a letter from Justice Department
explaining that “[t]here is no 65% threshold population figure applied as
a rule of thumb by the Department in redistricting matters reviewed under
Section 5”).

[100]
Benjamin Griffith Testimony, Hearing Transcript, p. 698. Espy won the
respect of the white planters in his Delta district by supporting their
interests as a member of the House Agriculture Committee. He received 40
percent of the white vote in his re-election. Dittmer, Local
People, p. 426. In 1995, the district court in Northern Mississippi
noted racial bloc voting in Calhoun County but also noted a diminution of
racially polarized voting. Clark v. Calhoun County, Miss., 881 F. Supp. 252
(N.D. Miss. 1995), rev’d,88 F.3d 1393 (5th Cir. 1996).

[101]
Griffith Testimony, Hearing Transcript, p. 698. In 1986, Mike Espy ran as a
Democrat and challenged white Republican incumbent Webb Franklin. Espy
narrowly won, receiving 97 percent of the black vote and 12 percent of the
white vote. Martin v. Allain, 658 F. Supp. 1183, 1194 (S.D. Miss. 1987). In
the 1996 congressional elections, five incumbent black representatives who
had originally won election from majority-black districts retained their
seats despite changes to their districts following wrongful districting
challenges. Despite their victories, however, it should be noted that the
races still exhibited racially polarized voting. For example, only 31
percent of white voters from Georgia’s 11th District voted for black
incumbent Cynthia McKinney and only 36 percent of white voters in the state’s
Second District voted for black incumbent Sanford Bishop. Moreover, in two
districts, black voters still constituted a plurality of voters.

[102]
Martin v. Allain, 658 F. Supp. 1183, 1194 (S.D. Miss. 1987). Moreover,
sociologist James Loewen analyzed the results of the voting in a citywide
referendum regarding whether the city should reform its at-large commission
form of government or replace it with a council whereby nine council members
would be elected from single-member districts. Loewen found that, if one
knew the voter’s race, one could predict the direction of the vote with
95.7 percent accuracy. Whites voted to keep the commission form; blacks
voted to change to the council form. Jerry Himelstein, “Rhetorical
Continuities in the Politics of Race: The Closed Society Revisited,”
The Southern Speech Communication Journal, vol. 48 (Winter 1983), p.
153.

[105]See, e.g., Blackwell Testimony, Hearing Transcript, pp. 688–89 (“I
think that we have to take a look at . . . what is the situation in our
country that makes us not appreciate this great right to vote”).

[106]
Luther Alexander Testimony, Hearing Transcript, pp. 702–03. Similarly,
Unita Blackwell testified that the Commission should examine whether young
people “[are] getting ready to vote, or are they getting to this climate
that’s in America that says . . . it’s not going to solve anything or
why should we go out and vote, and that kind of thing. And I think that we
have to take a look at . . . what is the situation in our country that makes
us not appreciate this great right to vote.” Blackwell Testimony, Hearing
Transcript, pp. 688–90.

[108]
Griffith Testimony, Hearing Transcript, p. 733. Interestingly, following
ratification of the 19th Amendment in 1919 until World War II, when women
began to enter the work force in unprecedented numbers, women registered and
voted at a much lower rate than did men. Even until the 1980s, the rate for
women still lagged behind that for men by at least 10 percentage points.
Karen McGill Arrington, “The Struggle to Gain the Right to Vote: 1787–1965,”
in Voting Rights in America, eds.
McGill Arrington and William L. Taylor (Washington, DC: Leadership
Conference Education Fund and the Joint Center for Political and Economic
Studies, Inc., 1992), pp. 32–33.

[110]
Griffith Testimony, Hearing Transcript, p. 726. Griffith also noted, “We
will not be mobilized and will not have participation and will not have that
equal access and opportunity that the Voting Rights Act guarantees until we
deal with the poverty question through education. I think they are
inextricably related. Those are three things that I think you can’t deal
with singly or in isolation.” Ibid., p. 728.

[111]
Blackwell Testimony, Hearing Transcript, p. 722. See also Brenda Wright Testimony, Hearing Transcript, p. 809 (“Steps
that need to be taken to ameliorate the still very significant differences
between white and black citizens in terms of their access to jobs, to
economic security, to a good education. Those things are all tied up with
political participation”).

[112]
U.S. Department of Commerce, Bureau of the Census, Social and Economic Characteristics: Mississippi, 1990 Census of
Population, No. CP-2-26, pp. 7, 34. In 1989, the average poverty threshold
for a family of four persons was $12,674.

[127]Miss. Const. art. 12, § 241
(1998). See alsoMiss. Code Ann.
§ 23-15-19 (1998). There have been resolutions introduced in the
Mississippi Legislature to broaden the class of felons to be precluded from
voting. See H.R. Con. Res. 6, 1998 Reg. Sess., 1998 M.S. H.C.R. 6
(1998). Mississippi had a history of selectively excluding certain felons
from voting in an effort to disqualify blacks; in 1890, Mississippi replaced
a constitutional provision disenfranchising citizens convicted of any crime
with one barring only those convicted of certain petty crimes that blacks
were supposedly more likely to commit than whites. See
Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896). See also Andrew L.
Shapiro, “The Disenfranchised,” The
American Prospect, November–December 1997, p. 60. The Supreme Court
unanimously struck down an Alabama constitutional provision with a similar
history of racial discrimination. Hunter v. Underwood, 471 U.S. 222
(1985).

[128]
H.R. 568, 105th Cong., 1st Sess. (1997). The bill was referred to the House
Judiciary Committee in February 1997 and has had no further activity since
that time.

[129]
“Another thing that’s here that we are talking about is that you have to
be rich, rich, rich to become an elected official. That is not always the
best elected official.” Blackwell Testimony, Hearing Transcript, p.
689.

[130]
Similarly, it appears that members of the Congressional Black Caucus raise
significantly less money than the average House member. For example, during
the 1991–1992 election cycle, the average caucus member raised $370,000,
versus $543,000 for the average House member. David A. Bositis, The Congressional Black Caucus in the 103rd Congress (Washington,
DC: Joint Center for Political and Economic Studies, 1994), p. 28.

[133]
The per capita income for white persons was $12,183 as compared with $5,194
for black persons. U.S. Department of Commerce, Bureau of the Census, Social
and Economic Characteristics: Mississippi, 1990 Census of Population,
No. CP-2-26, p. 82.

[141]
Ibid. Others believe that Mississippi’s black legislators have made the
Legislature more responsive to black needs in the enactment of legislation
for educational reform, the establishment of state-financed kindergartens
for the first time in the history of the state, improvements in the state
education financing system, the enactment of salary increases for public
schoolteachers, improvements in the provision of health care under Medicaid,
and the blocking of an increase in the state sales tax. Parker, Black Votes Count, p. 134.

[144]
Ibid., pp. 200–201. Parker argued that racial campaigning continued to
exist, however. For example, in a 1982 congressional race against Robert
Clark, who is black, Webb Franklin appealed to white voters with the slogan,
“He’s One of Us.” A Franklin television ad had the following
voice-over narrative: “‘You know, there’s something about Mississippi
that outsiders will never, ever understand. The way we feel about our family
and God, and the traditions that we have. There is a new Mississippi, a
Mississippi of new jobs and new opportunity for all our citizens [video pan
of black factory workers]. We welcome the new, but we must never, ever
forget what has gone before [video pan of Confederate monuments]. We cannot
forget a heritage that has been sacred through our generations.’” Ibid.,
p. 201. Webb Franklin won the race. In addition, a district court found
proof of racial appeals by white candidates in two 1986 elections. Indeed,
the racial appeals in one race “were overt and contained no subtlety.”
Martin v. Allain, 658 F. Supp. 1183, 1195 (S.D. Miss. 1987). See also
Jerry Himelstein, “Rhetorical Continuities in the Politics of Race: The
Closed Society Revisited,” The
Southern Speech Communication Journal, vol. 48 (Winter 1983), p. 153.

[148]
“Record Numbers Register Under ‘Motor Voter’ Law,” TheWashington
Post, Mar. 27, 1996, p. A16. According to the report, 5.7 million
registered or updated their registration while conducting motor vehicle
business and 1.3 million registered or updated at public-assistance
agencies.

[164]DOJ Objection Letter, p. 3.
DOJ based its conclusion on statistics indicating that a majority of the
applications for voter registration in Mississippi have come from public
assistance offices and other statistics indicating that participants in
Mississippi’s public assistance programs are predominantly black.

[177]
Ibid., p. 4. Early in 1995, the drivers’ license offices had abandoned
using the state’s mail-in voter registration forms they had offered prior
to implementation of the NVRA and instead offered only the NVRA forms. It
appears, however, that after voters registered under the NVRA were not
allowed to vote in state elections, the drivers’ license offices, unlike
the public assistance offices, resumed distributing state forms.

[184]
Branson, “Motor Voter Bill Keeps on Rolling,” p. A15. The Justice
Department noted that several proposals aimed at mitigating the
discriminatory effects of the separate registration systems have been
rejected by state officials for “reasons [that] . . . have been
insubstantial, and in some cases have been couched in racially charged terms
indicating antipathy toward “welfare voters.” DOJ
Objection Letter, p. 5.